Sieren v. Hildreth
| Decision Date | 11 December 1962 |
| Docket Number | No. 50753,50753 |
| Citation | 254 Iowa 1010,118 N.W.2d 575 |
| Parties | Joseph Alphonse SIEREN, Appellee, v. Wilbur R. HILDRETH, Sheriff of Polk County, Iowa, Appellant. |
| Court | Iowa Supreme Court |
Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and Harry Perkins, Polk County Atty., for appellant.
From & Sloane, Des Moines, for appellee.
This is a habeas corpus proceeding in which petitioner seeks to avoid a judgment of operating a motor vehicle while intoxicated wherein the court sentenced him to serve ninety days in jail or pay a fine of $500.00. It was contended that the judgment was void because two of the jurors who rendered the verdict of guilty were disqualified due to the fact that they were not duly selected for jury duty by the jury commission as required by sections 602.34, 602.35, and 602.36, of the 1958 Code of Iowa, I.C.A., and that this fact was not known to petitioner until months after his conviction. The trial court sustained the writ and discharged defendant from custody. The state appealed.
I. It is the general rule in this state that habeas corpus ordinarily will not lie because of error or irregularities in drawing, summoning or impaneling the petit jury. It is also well settled both by statute and decisions in Iowa, as in most jurisdictions, that an objection or challenge to the proposed petit jurors must be made before the jury is sworn where the grounds of objection are known or the means of their ascertainment are available. Section 779.3, Code 1958, I.C.A., Rule 187(d), Iowa Rules of Civil Procedure, 58 I.C.A.; 31 Am.Jur., Jury, § 154; 50 C.J.S. Juries § 251; State v. Pickett, 103 Iowa 714, 720, 73 N.W. 346; State v. Burch, 202 Iowa 348, 349, 350, 209 N.W. 474; State v. Walker, 192 Iowa 823, 827, 185 N.W. 619; Varble v. Whitecotton, 354 Mo. 570, 190 S.W.2d 244, 245; Ex parte Sullivan, 155 Fla. 111, 19 So.2d 611; Mart v. Lainson, 239 Iowa 21, 23, 30 N.W.2d 305; Ford v. United States, 201 F.2d 300, 301, 5th Cir. (1953).
II. The rule is also well established that a habeas corpus action cannot perform the function of another appeal from the judgment of conviction. Bell v. Lainson, 247 Iowa 505, 74 N.W.2d 592; Meeks v. Lainson, 246 Iowa 1237, 71 N.W.2d 446; Reeves v. Lainson, 234 Iowa 1034, 14 N.W.2d 625; Mart v. Lainson, supra, 239 Iowa 21, 30 N.W.2d 305; 39 C.J.S. Habeas Corpus § 15; 25 Am.Jur., Habeas Corpus, § 50.
The only issue germane to this appeal is the issue involving jurisdiction. It is not claimed that the jurors had been challenged for any cause prior to being sworn or that those who served in this case were not fair or impartial. Therefore, the constitutional right of trial by a fair and impartial jury is not involved. The state contends that the errors and irregularities complained of are not sufficient to avoid the proceedings which resulted in petitioner's conviction. We agree.
From the record it appears that almost a year after the verdict the petitioner learned that the names of seventy-nine persons not selected for jury duty by the jury commission had been placed in the jury panel box. Prior to that time no one concerned with the trial knew that fact and, although the jury list book containing the names of persons properly selected for jury duty for that year was kept in the office of the clerk of the municipal court available for inspection by interested parties, petitioner did not examine it or compare the names drwan with that list before accepting the two jurors not so listed to serve on his case. He did not interrogate them as to this qualification and did not challenge them or the panel. It also appears the discovery was made just before the submission of his appeal to the Supreme Court, and that no such issue was presented in that appeal or by a petition for rehearing. Thus the sole issue before us in this appeal is whether the judgment rendered against petitioner on September 24, 1960, and affirmed by us on October 17, 1961 (111 N.W.2d 249), was void, and not merely voidable.
III. Questions which may or should be decided at the trial or reviewed upon appeal have no place in a habeas corpus proceeding in the absence of exceptional circumstances. In 39 C.J.S. Habeas Corpus § 15, page 448, it is said: 'Where the restraint is under legal process, mere errors and irregularities which do not render the proceeding void are not ground for relief by habeas corpus, because in such cases the restraint is not illegal.' Only when inexcusable, radical and fatal defects plainly and indisputably manifest of record appear, should relief be granted in habeas corpus. Also in 25 Am.Jur., Habeas Corpus, § 50, page 181, it is stated: 'Mere errors or irregularities in the selection or formation of petit juries cannot be inquired into in habeas corpus proceedings', citing Ex parte Benefield, 31 Okl.Cr. 1, 236 P. 625; Younger v. Hehn, 12 Wyo. 289, 75 P. 443, 109 Am.St.Rep. 986. This is true even though the errors or irregularities committed during the trial or in the proceeding preliminary thereto are numerous and gross. Ex parte Benefield, supra.
In McCormick v. Hollowell, 215 Iowa 638, 642, 246 N.W. 612, we ourselves pointed out that the finding of reversible error will avail nothing to the petitioner in a habeas corpus proceeding, that the petitioner could have obtained a review of the judgment by appeal, but in not doing so he waived his right in that respect, and that it is well settled that if the court has jurisdiction of the person and of the subject matter, the judgment entered may not be assailed in a habeas corpus proceeding.
It is true in the early case of State v. Groome, 10 Iowa 308 (1860), this court placed the heavy burden of putting none but competent jurors in the jury box, and made a failure to do so jurisdictional. However, we have since reversed that position, and in State v. Pickett, supra, 103 Iowa 714, 719, 73 N.W. 346, 347, stated: 'The state makes no guaranty as to the competency of jurors * * *' and pointed out that every party should be held to exercise the right given him to examine as to the...
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...is sworn. State v. Burch, 202 Iowa 348, 349, 209 N.W. 474; State v. Brown, 253 Iowa 658, 665, 113 N.W.2d 286, 290; Sieren v. Hildreth, 254 Iowa 1010, 1012, 118 N.W.2d 575, 576 and citations. Obviously defendant and his counsel were completely familiar with the objection, prior to trial, whi......